Secondary Authority

• Author: Jeffrey Lehman, Shirelle Phelps

Page 54

Sources of information that describe or interpret the law, such as legal treatises, law review articles, and other scholarly legal writings, cited by lawyers to persuade a court to reach a particular decision in a case, but which the court is not obligated to follow.

Secondary authority is information cited by lawyers in arguments and used by courts in reaching decisions. Secondary authority is distinct from primary authority. The sources of primary authority are written laws passed by legislative bodies, prior judicial decisions, government administrative regulations, and court rules. Courts are obliged to decide cases by following the dictates of primary authority, and lawyers must make arguments based on the primary authority that is applicable to the case.

Neither lawyers nor courts are required to use secondary authority, but both may do so to buttress arguments based on primary authority. Among the most commonly cited sources of secondary authority are the RESTATEMENTS OF LAW, written by the authors, scholars, and legal professionals that make up the American Law Institute. The restatements contain suggested laws and rules on a wide assortment of legal topics ranging from contracts to TORTS to conflicts of laws.

Law reviews and other scholarly works are other commonly cited sources of secondary authority. Law reviews are articles about legal topics published by law schools and other legal organizations and written by law professors, law...